Sledding

Firefly has a good post up about the fact that our kids are not allowed to sled on one of our local sledding hills. I thought I might be able to expand on her thoughts a bit by providing some background.

Several years ago, a young child was injured when his (or her) sled crashed headlong into the haybales set up at the bottom of the hill to keep the kids from crashing into the driftfence at the bottom of the hill to keep the kids from sledding into the railroad tracks at the bottom of the hill. This child's parents hired a local attorney, Joe Sullivan, to represent them.

Joe is a good lawyer, and he put pressure on the City to settle the case, which it did. As a result of this claim and the resulting publicity, I believe Joe received a few additional claims which he also settled. Based on these claims the City, in consultation with its insurance carrier, elected to close the sledding hill. (If I have some facts wrong, please feel free to correct me.)

I thought at the time that what the City and its carrier should have done instead is try the cases. I did not believe local juries would have found the City liable for owning a hill upon which snow accumulates, especially given the protections of MCA 70-16-301 and 70-16-302. So, a couple jury trials ensue, the carrier shows some cojones, the City wins, end of problem. Instead, no sledding.

Firefly also alludes to the fact that people should assume the risk of their own conduct. Agreed. We should be technically careful, though, to point out that the law is somewhat different. Assumption of risk has been abolished in favor of comparative negligence. In other words, the defense would not argue that the sledder 'assumed the risk,' but would argue that to the extent there was any negligence to be allocated for sledding into a fence, it should be allocated to the sledder in addition to the City.